TV Licence Evasion Charges: Lines of Defence

As we have been saying for years, the TV licence is unfair, outdated and unenforceable.

It would appear that the Government is slowly coming around to that way of thinking, but at the current time - whether people like it or not - TV licence evasion is still a criminal offence enforced by the criminal courts. Ignore anyone who says differently - however confidently they might spout their freeman of the land claptrap - because they are totally wrong in any claim that TV licence evasion is a civil offence or that TV licence legislation only applies to those who consent to it.

As it has been a while since we last considered the legalities of the TV licence, it seems an opportune moment to remind readers of what actually constitutes an offence and some possible lines of defence if it does result in prosecution. As the coronavirus lockdown is slowly lifted, there will soon be a resumption of TV Licensing's enforcement and prosecution activities.

Evidence for prosecution:

Remember that every single TV Licensing prosecution hinges entirely on the evidence recorded on the TVL178 Record of Interview form. If a TV Licensing goon suspects evasion is taking place at an unlicensed property, they will attempt to interview the occupier under caution using the prompts printed down the side of the TVL178 form. It is crucially important that the occupier avoids dialogue with any visiting TV Licensing goon, so they are unable to complete the TVL178 form.

Our advice, as always, is to quickly identify any unsolicited caller to your property and immediately close the door on anyone suspected of being from TV Licensing. Remember that TV Licensing goons are not always candid about their true identity.

Should TV Licensing gain sufficient evidence (in its view) for prosecution, then a Single Justice Procedure Notice will be sent to the person named as the interviewee on the TVL178 form. In order to mount a defence, that person will need to deny the offence when they complete and return the notice. A hearing will then be arranged in the Magistrates' Court (which sadly could be some distance away) and they will need to attend court to put forward their defence on that date. You can read a lot more about the process by which TV Licensing gets people to court in our earlier article.

TV Licensing legislation:

The main pieces of legislation governing the TV licence are:

- Communications Act 2003;

- The Communications (Television Licensing) Regulations 2004.

We give a detailed interpretation of the legislation, for the benefit of the non-legalese, in Chapter 2 of the free ebook, TV Licensing Laid Bare. Please download TV Licensing Laid Bare if you'd like to read our comments.

Anyone intent on going toe-to-toe with TV Licensing will benefit from even a rudimentary grasp of the relevant legislation.

In short, a TV licence is needed for any property where equipment (known as a television receiver in the legislation) is installed or used to receive TV programmes at the same time (or virtually the same time) as they are broadcast or BBC on-demand programmes.

It is important to stress that there is no legal requirement for a TV licence merely to own or possess a TV set (or any other device capable of receiving TV programmes), as long as it is not actually installed or used to receive TV programmes or BBC on-demand programmes.

Defences to TV licence evasion charges:

Most criminal offences require the commission of a criminal act (actus reus) with a criminal intention (mens rea). TV licence evasion is slightly different, in that the commission of the criminal act alone is sufficient for a conviction. Such offences are called absolute or strict liability offences.

The criminal act in this case is the installation or use of a television receiver for the purposes of receiving television programmes (that is programmes, on any channel, at the same time as they are broadcast to other members of the general public) or BBC on-demand programmes (that is any programme on the BBC iPlayer that a person watches at the time of their choosing).

Any defence is likely to revolve around the issue of the television receiver or procedural errors arising during the completion of the TVL178 Record of Interview form.

The following are possible lines of defence:

- The equipment the TV Licensing goon observed was not a television receiver, so therefore no offence could have been committed. This might be the case if:

• It was only being used to watch non-BBC on-demand programme services, which were being streamed via the internet (for example, on-demand programmes via the ITV Hub, My5, All 4, Amazon Prime Instant Video, Netflix).
• It was only being used to watch pre-recorded DVDs.
• It was only being used as a games console/computer monitor.
• It was only being used to view CCTV images.
• It was only being used to listen to radio programmes.
• It was only being used to display images held on a removable storage device (e.g. to view a slideshow of photos held on an SD card).

Readers are reminded of the Rudd defence mentioned in earlier articles. In a nutshell: For a defendant to be guilty of TV licence evasion, the prosecution (TV Licensing) must prove that a television receiver was actually used, and not merely that it was available for use.

- The equipment the TV Licensing goon observed was not installed, so therefore no offence could have been committed. This might be the case if:

• It was unplugged at the wall: This argument will be stronger if the equipment was demonstrably positioned away from any wall socket.
• The goon them self asked/acted to plug in the equipment, which was otherwise uninstalled.
• The goon them self asked/acted to view a television programme service or BBC on-demand programme service, which would not otherwise have been viewed.
• There was no aerial plugged in or present: In the digital era it is not possible to receive programmes without an aerial, which means an offence cannot be committed.
• The screen on the equipment was defective rendering it incapable of displaying television programmes or BBC on-demand programmes.

- The TV Licensing goon did not enter the property (or their view inside was obscured), so therefore has no way of confirming that a television receiver was actually in use. This defence is only possible in cases where no admissions were made by the occupier.

- The TV Licensing goon did not touch or test the equipment, so therefore has no way of confirming it was being used as a television receiver instead of for an alternative non-licensable purpose (like watching pre-recorded DVDs). This defence will be stronger if another individual corroborates that no physical examination of equipment took place.

- The TV Licensing goon did not read the caution before completing the TVL178 form, so the defendant was unaware of their legal rights when interviewed. This defence will be stronger if another individual corroborates the absence of a caution.

- The TVL178 form contains provable errors or omissions, which casts into doubt the accuracy of other information recorded thereon.

- The defendant's copy of the TVL178 form is different to TV Licensing's copy, which casts into doubt the accuracy of the information recorded thereon.

- The TV Licensing goon made additions to the TVL178 form after the defendant had signed it, which casts into doubt the accuracy of the information recorded thereon.

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